What to do if (when) the CIS makes a mistake

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The CIS makes mistakes. They make a lot of mistakes. Sometimes, the mistake is just a simple error that resulted from a CIS clerk or adjudicator not paying attention or not reading the file. Other times, the error is the result of an illegal decision made by a rogue adjudicator - someone who willfully ignores the law.

One of the more common mistakes that we have seen recently is the improper and illegal denial of an adjustment of status application, pending for more than 180 days, denied because the original sponsoring employer attempted to withdraw the I-140 petition filed on the applicant's behalf. The CIS policy in this regard is clear: employers may not withdraw I-140 petitions - approved or pending - when the beneficiary of the I-140 has an I-485 on file that has been pending for 180 days or more. In a policy memorandum dated December 27, 2005, the CIS instructed field adjudicators as follows:

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or

B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Very clearly, an I-140 is no longer valid for porting purposes "an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days." It is equally clear that when an I-485 has been pending for 180 days or more, the I-140 cannot be revoked. When the CIS receives notification from an employer that the employer wishes to withdraw an I-140, after an I-485 has been pending for 180 days or more, that notification is meaningless. Such an I-140 may not be withdrawn or revoked.

With respect to unapproved I-140s, in a previous policy memorandum, dated May 12, 2005, the CIS instructed its field adjudicators thusly:

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.

B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?

Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and

B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Even in cases involving unapproved I-140s filed with I-485s that have been pending more than 180 days, an employer may not withdraw or revoke the petition after the 180 day mark.

The CIS Ombudsman has recognized this problem.

"The Ombudsman has received inquiries noting that USCIS is not issuing Notices of  Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.  Does this apply to you?"

If a foreign national is:  (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, s/he is eligible to change to a same or similar position.  If the underlying, approved Form I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then, USCIS must issue a Notice of Intent to Deny the pending Form I-485.

However, the Ombudsman understands that USCIS may deny the Form I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances.  These include, for example, where the beneficiary is ineligible for the benefits of the Form I-485 by statute, or the Form I-140 is withdrawn before the Form I-485 was pending for 180 days.

Do you think your case was erroneously denied?  Then please forward the CIS Ombudsman a case problem using DHS Form 7001 with the subject line “AC21 Evidence of Immediate Denial.”  Include a copy of your denial notice, detailed information as to the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider.  If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review."

Nonetheless, as a result of ignorance or malice, some rogue CIS adjudicators will reflexively deny an I-485 that has been pending 180 days or more for no reason other than the fact that the adjudicator received an attempted petition withdrawal by the former employer. If this happens, there are things that an applicant can do in response. 

First, the applicant should contact the Ombudsman's office, per the instructions immediately above. Next, the applicant should file a motion to reconsider within 33 days of the date of the denial. Form I-290B is used for the motion and it is filed with the office that issued the denial. The applicant should request a fee waiver on the grounds that a denial based on an attempted withdrawal of an I-140 by an employer after the applicant's I-485 had been pending more than 180 days is an obvious CIS mistake.

Having taken these steps, you should also file a formal complaint against those responsible. Write to USCIS-COMPLAINT@DHS.GOV and provide them with a copy of the denial notice and your I-290B. Explain to them how your life has been affected by the ignorant and/or malicious actions of the CIS officer responsible. Make sure that you copy your congressman and two senators on all correspondence. If enough people demand accountability, this nonsense will stop.